Portions of the regulations issued by the U.S. Department of Labor Wage and Hour Division interpreting the Families First Coronavirus Response Act were struck down yesterday by Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York. The DOL can appeal the decision, but for employers in the Southern District of New York, which includes New York City, the following provisions have been vacated:
The provision that says employees are not eligible for FFCRA leave if the employer does not have work available for them.
The provision that very broadly defines “health care provider” for purposes of the exclusion from FFCRA eligibility.
The provision requiring the employer to agree before an employee can take FFCRA leave on an intermittent basis.
The provision giving employers the right to require some (minimal) documentation in support of a request for FFCRA leave.
“Work not available.” Section 825.20(b)(2), (6), and (9) of the FFCRA regulations provide that employees are not eligible for paid leave if the employer has no work available in any event. For example, if a restaurant is closed because of a shutdown order (or for some other reason, even if it has nothing to do with COVID-19), the restaurant’s employees would not qualify for FFCRA leave because the employer would not have had work for them anyway. Judge Oetken noted that the regulations apply the “work-availability requirement” only to employees who are under a quarantine order, who are caring for an individual who is under such an order, or whose children’s schools or “places of care” are closed or whose child care providers are unavailable. Judge Oetken ruled that the DOL’s interpretation of the statute was “entirely unreasoned” because it applied the work-availability requirement to only three of the six qualifying reasons. He also rejected as “patently deficient” the DOL’s argument that, to be eligible for leave, the qualifying reason had to be the only reason for the leave.
“Health care provider.” Section 825.30 of the FFCRA regulations creates a very broad exclusion from eligibility for employees who are “health care providers.” Under the regulations, virtually any employee of a health care provider is arguably excluded from coverage – even cafeteria workers, administrators, and custodians. Judge Oetken called the DOL’s definition “vastly overbroad”: “The statute requires that the Secretary determine that the employee be capable of furnishing healthcare services” to be excluded from eligibility. (Emphasis in original.) Thus, the excluded employee must be “capable of providing healthcare services,” not “remotely related to someone else’s provision of healthcare services.” Although the DOL is not required to make these determinations on an “individual-by-individual” basis, the court said, “the statutory text requires at least a minimally role-specific determination.” The court noted that the DOL conceded “that an English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘health care providers’ under the Rule.”
Intermittent leave. Judge Oetken noted that the FFCRA says nothing about intermittent leave, and that the DOL could arguably impose restrictions on intermittent leave to help prevent the spread of COVID-19 in the workplace. However, he found that there was no justification for requiring employer consent for intermittent leave that did not relate to a condition that would increase the risk in the workplace – for example, when a parent needed to stay home because a child’s school was closed. According to the judge, “Insofar as it requires employer consent for intermittent leave . . . the Rule is entirely unreasoned . . .. It survives . . . insofar as it bans intermittent leave based on qualifying conditions that implicate an employee’s risk of viral transmission.”
Documentation. The FFCRA says that an employee seeking leave under the Emergency Family Medical Leave Emergency Act must provide the employer “with such notice of leave as is practicable.” An employee seeking leave under the Emergency Paid Sick Leave Act may be required “to follow reasonable notice procedures” after the first day of leave “to continue receiving such paid sick time.” According to Judge Oetken, Congress has already addressed this issue, and so the DOL’s very minimal documentation requirements are invalid because they are “more onerous than the unambiguous statutory scheme Congress enacted.”
Perhaps the most concerning aspects of Judge Oetken’s decision relate to the work-availability requirement and the health care provider exclusion. Regarding the former, it appears that an employer might have to provide FFCRA leave to employees who would otherwise have qualified for leave, even if the employer has shut down its operations. Regarding the health care provider exclusion, the impact on private hospitals may not be significant because most are presumably too large to be covered by the FFCRA. However, the FFCRA’s “under 500 employee” threshold does not apply to most public sector employers, so a hospital or other large health care employer that is considered “public” may lose this exclusion as it applies to ancillary employees.
As noted above, Judge Oetken’s decision does not apply outside the Southern District of New York. The Department of Labor could appeal the decision to the U.S. Court of Appeals for the Second Circuit, and the appellate decision – whatever the outcome – would apply only in the Second Circuit states of Connecticut, New York, and Vermont. Federal courts in other parts of the country are free to follow or decline to follow Judge Oetken's decision.
One option for the DOL would be to issue revised regulations, but that might not be practical because the FFCRA will expire on December 31, only four months from now. Or the DOL could simply leave the regulations in place but not try to enforce them in the Southern District of New York.